IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1964 of 2008()
1. ABDUL KHALAM
... Petitioner
Vs
1. STATE OF KERALA AND ANOTHER
... Respondent
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :17/06/2008
O R D E R
V. RAMKUMAR, J.
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Cr.R.P.No.1964 of 2008
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Dated: 17.06..2008
O R D E R
In this revision, the petitioner who is the accused in
S.T.No.2708 of 2005 on the file of the J.F.C.M-III, Punalur for
offences punishable under Sections.337,340 and 447 read with
511 of the Kerala Municipality Act, 1994, challenges the
conviction entered and the sentence passed against him
concurrently by the courts below. The accused has been
sentenced pay a fine of Rs.500/- under section 337 read with
Section 511 and the 4th Schedule of the Kerala Municipality Act
and also sentenced to pay an amount of Rs.1,000/-under section
447 read with Section 511 and 4th schedule of the Kerala
Municipality Act. With regard to the offence under Section 340
of the Kerala Municipality Act, he was acquitted.
2. The case of the complainant, who is a Second Grade
Health Inspector in the Punalur Municipality can be summarised
as follows:-
The accused is conducting a hotel in a building bearing
Crl.R.P.No.1964/2008 -:2:-
No.PMC 10/200 in the name and style of “Shaji Hotel” near
Punalur Post Office in the Market ward of Punalur Municipality.
The accused has been allowing the flow of filthy water from the
drain provided to the said hotel. The above act of the accused is
in gross violation of the conditions of the licence given to the
hotel and is causing nuisance and hardship to the nearby
traders and the passengers at large. It also causes stink and
poses a great health hazard to the public.
3. On the accused pleading not guilty to the charge
framed against him by the trial court for the aforementioned
offences, the prosecution was permitted to adduce evidence in
support of its case. The prosecution altogether examined two
witnesses as P.Ws 1 and 2 and got marked 9 documents as
Exts. P1 to P9 .
4. After the close of the prosecution evidence, the
accused was questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against him
in the evidence for the prosecution. He denied those
circumstances and maintained his innocence. He did not adduce
any defence evidence when called upon to do so.
Crl.R.P.No.1964/2008 -:3:-
5. The learned Magistrate, after trial, as per judgment
dated 27.4.07 acquitted the revision petitioner of the offence
punishable under Section 340 of the Kerala Municipality Act and
convicted him of the other two offences for which the punishment
was only fine as indicated above. On appeal preferred by the
revision petitioner before the Addl. Sessions Court, Kollam, the
lower appellate court as per judgment dated 5.01.08 acquitted
the revision petitioner of the offences punishable under Section
340 Kerala Municipality Act, but confirmed the conviction entered
and the sentence passed against the revision petitioner for the
other offence. Hence, this Revision.
6. The learned counsel for the revision petitioner
contended that Ext.P2 spot mahazar which was the basic
document relied on by the prosecution, allegedly prepared by
PW1, Jayakumar, Second Grade Health Inspector, Punalur
Municipality was really not the Mahazar evidencing personal
inspection by PW1. The recital in Ext.P2 mahazar will show that
the inspection was conducted by one Anas who was examined as
PW2. Hence the courts below went wrong in relying on Ext.P2 to
hold that the spot inspection conducted by PW1 revealed the
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offences committed by the revision petitioner.
7. I cannot agree. A perusal of Ext.P2 Mahazar shows that
it was Anaz the junior Health Inspector, who was examined as
PW2, who initially conducted an inspection and found that the
petitioner was discharging filthy water into the public road. The
Mahazar proceeds to say that, thereafter a fine was imposed on
the petitioner, the petitioner obtained a stay of recovery of the
fine in a writ petition filed before this Court and that, even
thereafter, the petitioner was continuing with the act of
discharging filthy water into the public road contrary to the
conditions imposed by this Court in the said writ petition. This is
an observation made by the author of the Mahazar namely PW1,
Jayakumar. Moreover, Anaz, the Junior Health Inspector is also a
witness to the said Mahazar. Hence it cannot be said that the
reliance placed on Ext.P2 Mahazar was not justified. The
conviction was recorded by the courts below concurrently after
a careful evaluation of the oral and documentary evidence in the
case. This Court sitting in revision will be loathe to interfere with
the said conviction which is accordingly confirmed. If at all the
courts below had erred, that was on the side of leniency in not
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awarding a sentence of imprisonment on the revision petitioner.
However, I refrain from taking further action in the matter in the
hope that the petitioner will not continue to contaminate the
public road and nearby places by draining filthy water.
This Crl.R.P. is dismissed.
V.Ramkumar, Judge.
sj